Before taking action, landlords are well advised to seek legal advice. If you are a tenant and want to avoid forfeiture or seek formal court relief from forfeiture, legal advice is also recommended. We are experienced in this area of law, so please do get in contact.
Remember that with commercial leases, whilst termination is rarely straightforward, it is a lot easier than with a residential lease.
Subject to the terms of the lease agreement (legal advice should be sought) a lease generally cannot be forfeited by any other breach of the lease except non-payment of the agreed rental amount.
If a different breach of lease has occurred then the landlord is within his rights to serve the tenant with a notice which should state exactly what that breach is and must give the tenant a set period of time to rectify the breach.
If the tenant adheres to the order and rectifies the breach within the set time period then the landlord’s right of forfeiture no longer stands but if the tenant continues to commit a breach of the lease the landlord can then pursue forfeiture of the lease through the court.
Surrender as an alternative
If the tenant is in genuine financial difficulties, a possible alternative to forfeiture is to agree that the lease is surrendered by the tenant. This at least will avoid significant legal costs and possible delay.
Requirements to be satisfied before the Landlord can forfeit
There are certain requirements that the Landlord must satisfy before they can forfeit the Lease.
• The right is not automatic and only exists if there is an express clause in the Lease that states such a right exists;
• The Tenant must be in breach of one or more of their Leasehold Covenants which will trigger the right;
• The Landlord must take appropriate procedural steps (i.e. Notice);
• The Landlord must not waive his right to forfeit; and
• The Tenant has not applied for relief from forfeiture or did apply but was refused by the Court
For more information on Forfeiture or Section 146 Notices please feel free to contact us.
Landlord’s waiver of Forfeiture
If at any time, whether Notice if served or not, the Landlord must make sure that he does not waive his right to forfeit the Lease. A waiver occurs when the Landlord is aware of the breach and performs an act which recognises the existence of the Landlord and Tenant relationship. A common example of this is making a demand for rent or service charge or accepting rent or service charge. By doing this it is deemed that the Landlord has made an election not to forfeit the lease and therefore waives his right.
Relief from Forfeiture
If a Tenant is served with a Section 146 Notice they have the option to apply to the courts for a relief from forfeiture and if they are successful the Courts can set aside the forfeiture.
How to exercise the Right – Procedural Steps
If the breach of Covenant is for non payment of rent then the Landlord must first demand the rent. If the rent is not received within a reasonable amount of time the Landlord may then re-enter and forfeit the Lease.
If, however, the breach is a breach of a Covenant other than the payment of rent the Landlord must first serve a Notice under Section 146 of the Law of Property Act 1925.
What is a Section 146 Notice ?
A Section 146 Notice notifies the Tenant who is in breach of a covenant in the lease that the Landlord’s intends to forfeit the Lease. The Notice needs to clearly specify what the breach is and if it is something that is remediable then the Notice must allow the Tenant to remedy the breach together with appropriate financial compensation to the Landlord.
Forfeiture is not straightforward. Whilst some landlords will seek to forfeit by simply changing the locks without a court order, this is highly risky, and may result in an expensive application being made to court for relief from forfeiture by the tenant plus a possible damages claim for loss of business or damage to business. Legal advice should be sought. Generally, a landlord wishing to forfeit the lease of his property will need to apply to the court to obtain an order to authorise the forfeiture.